COMMERCIAL WHARF EAST CONDOMINIUM ASSOCIATION v. CHRISTOPHER P. KARLSON, as he is TRUSTEE of CDK REALTY TRUST, and SALVATORE DIGNOTI, FREDERIC S. CLAYTON, and PHILLIP Y. DeNORMANDIE, as they are TRUSTEES OF THE WHARF NOMINEE TRUST, and BENCION MOSKOW, KONRAD GESNER, and CHARLES W. BROWN, III, as they are TRUSTEES OF THE BLUE WATER TRUST.

By virtue of the instant action, the plaintiff Commercial Wharf East Condominium Association (Association / plaintiff) seeks a declaration pursuant to G.L. c. 231A, § 1 that Christopher Karlson, Trustee of the CDK Realty Trust (CDK) and Salvatore Dignoti, et al., Trustees of the Wharf Nominee Trust (Wharf) (collectively, Trusts / defendants) have no legal right, title or interest in, or the use of, certain common area basement storage areas to which the defendants purport to hold title.

For their part, the defendants assert such rights pursuant to a reservation in the “Commercial Wharf East Condominium Amendment of Master Deed” (Amended / Restated Master Deed) and a Grant of Rights Deed (Grant of Rights). The plaintiff argues, inter alia, that the said reservation constituted a non-transferable license or easement in gross personal to the Trustees of the Blue Water Trust, the Declarant of the Commercial Wharf East Condominium (Condominium). As a consequence, the plaintiff asserts that the transfer of the purported rights was invalid.

The plaintiff has moved for partial summary judgment arguing that the transfer of the condominium declarant’s reservation of rights to use condominium cellar spaces is invalid because the reservation of rights is a non-transferable easement in gross. The plaintiffs ask, as well, that the defendant condominium unit owner’s counterclaims for constructive trust and conversion be dismissed.

The defendant CDK opposes plaintiff’s motion for partial summary judgment arguing that the easement at issue was an appurtenant one that was subject to transfer. The Defendants argue too that should the court determine that the retained cellar rights constituted an easement in gross, that “[e]asements in gross for commercial purposes and for some economic purposes have always been considered transferable.”

Upon consideration, this court will allow the plaintiff’s Motion for Partial Summary Judgment.

Background

This condominium development and the rights retained by the developer have in the past, been the subject of extensive litigation. In the matter of Commercial Wharf East Condominium Association v. Waterfront Parking Corporation, 407 Mass. 123 , 125-126 (1990) [Note 1] the Court provided the following background:

The subject of this litigation is the land in Boston known as Commercial Wharf. In 1967, Commercial Wharf was purchased by the developer [Blue Water], which rehabilitated the granite block warehouse in the center of the wharf and, in 1978, decided to convert the building into condominium units. The developer originally intended to put only the granite building into condominium ownership and to retain the rest of the wharf in its own name, but learned, however, that such a plan would violate the floor-area requirements of the Boston Zoning Code. The developer resolved the zoning problem by deciding to grant a portion of the parking area, as well as the granite building, to the condominium . . . .

Immediately prior to recording the condominium master deed, which covers the granite building and a portion of the wharf known as the “parking and driveway area,” the developer recorded a document entitled “Commercial Wharf East Condominium—Declaration of Covenants and Easements” (Declaration). The Declaration purports to retain certain rights for the benefit of the retained land over the parking area which was deeded to the condominium. The retained rights include the right “to control and collect fees for the parking of vehicles in such area.” The Declaration also provides that the owner of the retained land must maintain and manage the parking area and rent parking spaces to condominium unit owners at reasonable and competitive rates. The condominium master deed recorded shortly after the Declaration, recites that it is subject to the easement pronouncement in the Declaration.

From 1978 to 1984 the developer sold the condominium units in the granite building and managed the entire parking lot, including the parking and driveway area deeded to the Association. Then, in 1984, the developer began to sell its remaining interests on Commercial Wharf. First, in June, 1984, it conveyed lots 2 and 3 to the defendants Wharf Nominee Trust and Marina Nominee Trust . . . In April, 1985, the developer conveyed lots 4, 5, and 6 and the right "to control and collect fees" in the parking and driveway area to the defendant Waterfront Park Limited Partnership . . . then sold lot 1 and the right to twenty-six of its fifty-two irrevocable parking licenses to East Commercial Wharf Limited Partnership . . . . Next, in February, 1986, the developer conveyed lot 8 to One Hundred Atlantic Avenue Limited Partnership (Atlantic).

The “Commercial Wharf East Condominium-Declaration of Covenants and Easements” (Declaration) recites that the declarant, Blue Water Trust “desires to create a condominium (the Condominium Land) on a portion of [its] Land … and to retain the land not included in the Condominium Land for themselves and their successors and assigns (the Retained Land);... This is the so-called Retained Land to which the court alluded referred in the foregoing case. The Declaration continues, in pertinent part, as follows:

WHEREAS, Declarant desires to create for the benefit of the Condominium Land certain rights and easements to use the Retained Land subject to the limitations set forth herein,...

Now, Therefore, the Declarant declares that the Land… shall be held, sold conveyed and occupied subject to and with the benefit of the…easements…hereinafter set forth....

There follows a detailed description of the primarily parking related rights retained by the Declarant. There is no mention made of the cellar usage at issue herein.

It is clear from the language of the Declaration, as found by the Court in Commercial Wharf, that “the interest retained by the developer in the Declaration is an easement. The intent to create a property interest appurtenant to and for the benefit of the retained land is evident from the language of the Declaration.” [Note 2]

Suffice it to say, that no such intent is apparent from the language herein at issue, as set forth in the Amended Master Deed.

The Condominium was created by Master Deed dated August 8, 1978, by the Trustees of the Blue Water Trust (Blue Water / Declarant). [Note 3] On August 8, 1978, Blue Water recorded the Commercial Wharf East Condominium Declaration of Covenants and Easements. [Note 4] Thereafter, on November 20, 1978, the Master Deed was restated by Amendment. [Note 5]

In paragraph four of the Restated Master Deed, Blue Water reserved for itself certain rights, as follows:

There is reserved to the sponsor the right to use for storage, shop use and other purposes related thereto the cellar in buildings 59, 60, 65, 66, 67, and 68, and portions of the cellars in buildings 35, 36, 37, and 38 Commercial Wharf as delineated on the floor plans herein referred to. [Note 6]

By deed dated June 22, 1984, Blue Water conveyed Lot 3 to the Wharf Nominee Trust. That deed, recorded with the Suffolk Registry of Deeds on June 22, 1984 at Book 10989, Page 281, included the following:

Grantor grants to Grantee, without covenants, Grantor’s rights in the cellar of building number 34 in the Commercial Wharf East Condominium, said rights having been reserved in Amendment of Master Deed dated November 20, 1978 recorded with said Deeds in Book 9120, Page 337.

CDK is the owner of Condominium Unit 65-1 and Unit 66-68 by virtue of a single Unit Deed to it dated March 3, 1994 and recorded with the Suffolk Registry of Deeds (Registry) on March 9, 1994 at Book 18917, Page 45. [Note 7] The said Unit Deed references a 1.5581% interest in the common area and facilities, [Note 8] “as described in the Master Deed and the Condominium Trust and with such rights as are set forth in the Master Deed with respect to parking, balconies and the use of the basement storage area.” [Note 9] The Unit Deed for Condominium Unit 65-1 and Unit 66-68 contains no reference to ownership or easement rights in the condominium cellar spaces. [Note 10]

On November 10, 1994, Blue Water conveyed Lot 7 of the Commercial Wharf development to KDC Realty Trust. [Note 11] KDC Realty Trust (KDC) is not a party to this action. However, it and CDK are purportedly “Massachusetts pass through realty trusts.” [Note 12] Each trust names Danielle E. deBenedictis as its sole beneficiary. [Note 13]

By a document captioned “Commercial Wharf East Condominium Grant of Rights” dated November 10, 1994, Blue Water purported to “grant to William D. Delahunt, [Note 14] Trustee of CDK Realty Trust, under Declaration of Trust dated March 9, 1994 and recorded with the Suffolk County Registry of Deeds in Book 18917, Page 039, to the extent same are held by the undersigned, [Note 15] any and all those rights reserved under paragraph 4 of said [Restated] Master Deed regarding the right to use for storage, shop use and other purposes related thereto, the Seller [Note 16] [sic] in Buildings 59, 60, 65, 66, 67 and 68 Commercial Wharf and the portions of the cellar in buildings 34, 35, 36, 37 and 38 Commercial Wharf . . . .” [Note 17] (emphasis added) These are the same rights reserved to Blue Water in the Restated Master Deed. [Note 18]

Summary Judgment Standard

Summary judgment is appropriate when “pleadings, depositions, answers to interrogatories, and responses to requests for admission...together with affidavits...show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.” Mass. R. Civ. P. 56(c). The moving party bears the burden of proving the absence of controversy over material facts and that he or she deserves a judgment as a matter of law. See Highlands Ins. Co. v. Aerovox Inc., 424 Mass. 226 , 232 (1997). Accordingly, when acting upon motions for summary judgment, this court is to determine “whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to judgment as a matter of law.” Augat, Inc. v. Liberty Mutual Ins. Co., 410 Mass. 117 , 120 (1991).

“The burden on the moving party may be discharged by showing that there is an absence of evidence to support the non-moving party’s case.” Kourouvacilis v. General Motors Corp., 410 Mass. 706 , 711 (1991), citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Thus, “regardless of whether the moving party accompanies its summary judgment motion with affidavits, the motion may, and should, be granted so long as whatever is before the . . . court demonstrates that the standard for the entry of summary judgment . . . is satisfied.” Kourouvacilis v. General Motors Corp., 410 Mass. at 713, quoting Celotex Corp. v. Catrett, 477 U.S. at 323-24. In cases where the “nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the pleadings, depositions, answers to interrogatories, and admissions on file.” Id.

A corollary to the moving party’s burden is that the court is to “make all logically permissible inferences” from the facts in the non-moving party’s favor. Willitts v. Roman Catholic Archbishop of Boston, 411 Mass. 202 , 203 (1991). That said, “the right of a party facing summary decision to have the facts viewed in a favorable light . . . does not entitle that party to a favorable decision” and reliance upon mere “bald conclusions” is an inadequate means of defeating the motion. Catlin v. Bd. of Registration of Architects, 414 Mass. 1 , 7 (1992).

Mass R. Civ. P. 56(c) permits the disposition of controversies if in essence there is no real dispute as to the salient facts, such that resolution of the matter depends solely upon judicial determination of a question of law. For summary judgment to enter, the undisputed facts have to be sufficient to furnish the judge with evidence upon which the key question of law might be resolved. As I find that there are no genuine issues of material fact, this matter is ripe for summary judgment.

Discussion

The plaintiff has requested a declaration pursuant to G.L. c. 231A, § 1 that the transfer of the reserved rights to CDK was invalid because the rights reserved to the developer constituted a non-transferable easement in gross. The plaintiff also argues that the defendant’s counterclaims should be dismissed as a matter of law.

The defendant disputes the plaintiff’s characterization of the reserved rights, arguing that they are more appropriately characterized as an easement appurtenant to Lot 7, or as a commercialeasement in gross. The defendant also maintains that its counterclaims cannot be decided on summary judgment. As the determination of the nature of the reserved rights may be dispositive of the defendant’s ability to maintain its counterclaims, this court will discuss those rights at the outset.

I. The Nature of the Reserved Rights

The explicit rights reserved to Blue Water in the Restated Master Deed have been previously noted. The “right to use” the property of another is an easement. Commercial Wharf East Condo. Ass’n v. Waterfront Parking Corp., 407 Mass. 123 , 133 (1990) (“An easement is an interest in land which grants to one person the right to use or enjoy land owned by another.”); see M.P.M. Builders, LLC v. Dwyer, 442 Mass. 87 , 92 (2004) (“An easement is by definition a limited, nonpossessory interest in realty.”); Restatement (Third) of Property (Servitudes) § 1.2 (2000) (“An easement creates a nonpossessory right to enter and use land in the possession of another and obligates the possessor not to interfere with the uses authorized by the easement.”); 3 Powell, Real Property § 405 at 34-13 (P. Rohan ed. 1992) (“The requirement that the easement involve only a limited use or enjoyment of the servient tenement is a corollary of the nonpossessory character of the interest.” (emphasis in original)).

An easement is either “appurtenant” or “in gross.” Schwartzman v. Schoening, 41 Mass. App. Ct. 220 , 223 (1996) (“An easement is appurtenant to land when the easement is created to benefit and does benefit the possessor of the land in his use of the land.”); see Restatement of Property § 453 & comment b (1944) (“In order that an easement may be appurtenant to a particular tract of land, not only must it appear that the easement was created for the purpose of benefiting the possessor of that land in his use of it, but the use permitted by the easement must be such as really to benefit its owner as the possessor of that tract of land. Moreover, the easement must in some degree benefit the possessor of the land in his physical use or enjoyment of the tract of land to which the easement is appurtenant.”) An appurtenant easement is typically transferred along with the dominant estate, when the latter is conveyed.

See McLaughlin v. Bd. of Selectmen of Amherst, 422 Mass. 359 , 364 (1996) (defining an easement in gross as “a personal interest in or right to use land of another”); see Black’s Law Dictionary (7th Ed.) pg. 527 (“Easement in gross. An easement benefiting a particular person and not a particular piece of land.”). An easement in gross is not transferable or conveyable. See Rogel v. Collinson, 54 Mass. App. Ct. 304 , 315 (2002); See Restatement (Third) of Property (Servitudes) § 1.5 (2000) (easement in gross intended to be personal is not transferable). There is a “general presumption favoring appurtenant easements as distinguished from personal easements (easements in gross).” Schwartzman v. Schoening, 41 Mass. App. Ct. 220 , 223 (1996). “An easement is not presumed to be personal unless it cannot be construed fairly as appurtenant to some estate.” Willets v. Langhaar, 212 Mass. 573 , 575 (1912).

The “party seeking to assert an easement over a particular piece of land bears the burden of proving the nature and extent of any such easement.” Foley v. McGonicle, 3 Mass. App. Ct. 746 , 746 (1975). The extent and nature of the easement is to be determined by construing the language in the document or deed setting forth the reservation of rights, and the circumstances in which the document was drafted. See Rahilly v. Addison, 350 Mass. 660 , 662 (1966). “Deeds should be construed as to give effect to the intent of the parties, unless inconsistent with some law or repugnant to the terms of the grant.” Commercial Wharf East Condo. Ass’n v. Waterfront Parking Corp., 407 Mass. 123 , 131 (1990) (internal citations omitted). The intent of the parties is gleaned from “the words used, interpreted in the light of the material circumstances and pertinent facts known to them at the time [the deed] was executed.” Id.

Where the easement is “created by a conveyance, the extent of the easement is fixed by the conveyance ... and the language used ... is the primary source for the ascertainment of the meaning of the conveyance.” Sheftel v. Lebel, 44 Mass. App. Ct. 175 , 179 (1998).

When the language of the document is “clear and explicit, and without ambiguity, there is no room for construction, or for the admission of parol evidence, to prove that the parties intended something different.” Cook v. Babcock, 7 Cush. 526 , 528 (1851).

In the case at bar, the language concerning the reservation of rights is unambiguous. The Restated Master Deed reserves “to the Sponsor the right to use [the cellar space] for storage, shop use and other purposes related thereto.” After consideration of the relevant circumstances at the time of the reservation, and the intent of the grantor as demonstrated in the language of the reservation, this court concludes that the reserved right is most appropriately characterized as an easement in gross, likely intended by the sponsors merely to facilitate their ongoing development efforts and business pursuits. [Note 19]

The defendant argues that the easement should be considered appurtenant to Lot 7, which was sold to KDC the same day as the purported Grant of rights to CDK Realty trust. The court is not persuaded by this argument. [Note 20] There is no language in the reservation of rights indicating that use of the cellar space is for the benefit of the land retained by the developer and which later came to be owned by KDC. This is to be compared with the parking rights discussed by the Court in Commercial Wharf in which there were multiple explicit references to an easement for the retained land.

Moreover, “[i]n a conveyance of real estate all rights, easements, privileges and appurtenances belonging to the granted estate shall be included in the conveyance, unless the contrary shall be stated in the deed.” G.L. c. 183, § 15. While “it shall be unnecessary to enumerate or mention them either generally or specifically,” id., the deed conveying Lot 7 to Christopher P. Karlson, Trustee of KDC Realty Trust is in fact, highly specific. It includes the following language:

The conveyance of Lot 7 is made subject to and with the benefit of all easements, restrictions, rights, reservations, covenants, agreements and encumbrances of record now in force and applicable, including without limitation....

There follows a list of fourteen items. [Note 21] It is noteworthy that none of the enumerated items includes the cellar easement at issue. This court is unable to conclude that where, by all appearances, great care was taken to formulate a comprehensive list of easements, reservations, and the like, to which the conveyance of Lot 7 was made subject, the purported appurtenant easement to use the numerous cellar spaces was unintentionally omitted. There is “no further language suggesting that the easement at issue was for the benefit of [any land], or that it could be assigned or transferred by the grantor to any other person or entity.” Rogel v. Collinson, 54 Mass. App. Ct. 304 , 313 (2002). This omission, appearing purposeful in nature, supports the argument that the cellar easement in question was not considered as appurtenant to Lot 7, or indeed, to any other parcel.

Lending further support to the conclusion that the cellar easement is one in gross, is a letter of June 9, 1995 from Danielle E. deBenedictis to the plaintiff herein. [Note 22] Attorney deBenedictis wrote as follows, to complain of the alleged use by others, of certain of the cellar areas in question “in violation of [her]rights”:

As you are aware, I, as Trustee of my family’s irrevocable Trust, I am the owner of Lot 7 on the Commercial Wharf Development Plan on file with the Boston redevelopment authority. As part of that purchase, I also bargained for, gave consideration for and was granted by Blue Water Trust pursuant to a Grant of Rights document... the right to the exclusive use of the basement spaces at buildings 59, 60, 65, 66, 67 and 68 Commercial Wharf as well as portions of the cellar in buildings 34, 35, 36, 37 and 38. These are the rights specially reserved to the sponsor (Blue water Trust) when the Commercial Wharf East Condominium was created in November 1978 by Master Deed recorded by the Trustees of Blue Water Trust. In Section 4 of the Master Deed, the Trustees reserved for themselves these basement spaces pursuant to the following precise language:

“There is reserved to the Sponsor the right to use for storage, shop use and other purposes related thereto, the cellar in buildings 59, 60, 65, 66, 67 and 68 Commercial Wharf and portions of the Cellar in buildings 34, 35, 36, 37 and 38 Commercial Wharf delineated on the floor plans herein referred to.”

....This complete reservation of rights specifically in the sponsor and under Massachusetts case law is viewed as a right “in gross” as opposed to a right “appurtenant” since it is not created to benefit other real estate but rather to specifically benefit the Sponsor. (emphasis added)

The language in the Master Deed makes no reference to the “rights” being reserved by the Sponsor being “appurtenant” to other property of the Sponsor The distinction between a right in gross and a right appurtenant revolves around whether this right is extinguished once the Sponsor of the condominium has sold all units in the condominium. A right appurtenant would be extinguished once the sponsor had sold all condominium units, the rights retained by the Sponsor would no longer be “attached” to any condominium units owned by the Sponsor. A right in “gross” is not extinguished upon such a sale since Massachusetts law specifically provides that it is able to exist “unattached” to any other estate. A right in “gross” can exist in and of itself and is a personal right held by the Sponsor.

As a rule, an easement in gross is not transferable. See Rogel v. Collinson, 54 Mass. App. Ct. 304 , 315 (2002). The exception to the rule arises where there is explicit language in the grant stating that the easement may be assigned or transferred. See Goodrich v. Burbank, 12 Allen 459 , 466 (1866). There is no such language in the reservation of rights in the instant matter. The rights are reserved solely “to the Sponsor,” and there is no indication that the rights may be assigned or transferred. [Note 23] Absent explicit language to the contrary, the principle that an easement in gross may not be transferred, must stand.

Defendant argues that the easement, even if one in gross, may be transferred nonetheless, as an easement for commercial purposes. The court is not persuaded by this argument. Although other jurisdictions may recognize the concept of a commercial easement, see, e.g., Miller v. Lutheran Conference & Camp Ass’n, 331 Pa. 241 (1938); Sandy Island Corp. v. Ragsdale, 246 S.C. 414 (1965), Massachusetts has not done so. In the absence of relevant decisional or statutory law which would support the existence of such a concept within the Commonwealth, this court is not prepared to recognize this hitherto unrecognized interest. Therefore, this court concludes that the reservation of rights in the Restated Master Deed created a non-transferable easement in gross that was, and still is, personal to the developer of the condominium, Blue Water Trust. This determination renders the Grant of Rights invalid. CDK has no interest in the cellar space as reserved in paragraph 4 of the Restated Master Deed beyond any use that may be consistent with its position as owner of individual units in the condominium.

It is worthy of note moreover, that while Lot 7 was conveyed to Christopher P. Karlson, Trustee of KDC Realty Trust, the Grant of Rights from the trustees of Blue Water Trust purported to convey the cellar easement to William D. Delahunt, Trustee of CDK Realty Trust, a different entity. Thus, the easement at issue was purportedly conveyed to one entity, CDK, while the land to which that easement was purportedly made appurtenant, was conveyed to a second entity, KDC. The manner of this conveyance lends yet additional support to the conclusion that the easement in question, was not an appurtenant easement.

II. Defendant’s Counterclaims

Defendant’s counterclaims are predicated upon a purported interest in the cellar space as set out in the Grant of Rights. This court has determined that no such rights exist in CDK as the Grant is invalid. As the defendant has no such interest, it is not entitled, therefore, to moniescollected by the plaintiff from third parties for the use of the area. Consequently, the defendant is unable to sustain a claim of conversion against the plaintiff. Moreover, no constructive trust may be impressed upon any profits acquired by the plaintiff acquired from any use and rental of the cellar space. In light of the discussion supra, the counterclaims must be dismissed.

Conclusion

The plaintiff is entitled to a declaration that the rights reserved in the Restated Master Deed constitute an easement in gross that is personal to the developer of the Commercial Wharf Condominium, Blue Water Trust, and were not, therefore, transferred to defendant Wharf Nominee Trust by deed of June 22, 1984 [Note 24] or to CDK by means of the November 10, 1994 Grant of Rights.

Accordingly, it is hereby

ORDERED that the plaintiff’s Motion for Partial Summary Judgment is hereby ALLOWED to the extent set forth herein. [Note 25]

SO ORDERED.